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The Founders' Origination Clause and Implications for the Affordable Care

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THE FOUNDERS’ ORIGINATION CLAUSE AND IMPLICATIONS FOR THE AFFORDABLE CARE ACT ROBERT G. NATELSON* This Article is the first comprehensive examination of the original legal force of the Constitution’s Origination Clause, drawing not merely on the records of the 1787–90 constitutional debates, but on Founding-Era British and American legislative practice and other sources. This Article defines the bills governed by the Origination Clause, the precise meaning of the House origination requirement, and the extent of the Senate’s amendment power. For illustrative purposes, the Article tests against its findings the currently-litigated claim that the financial penalty for failure to ac- quire individual health insurance under the Patient Protection and Affordable Care Act is invalid as a Senate-originated “tax.” The Arti- cle concludes that this “tax” was a valid Senate amendment to a House-adopted revenue bill. The Article also concludes, however, that the amendments that added the PPACA’s regulatory provisions and appropriations were outside the Senate’s amendment power. INTRODUCTION ............................................................ 633 I. THE UNLOVED CLAUSE? SURVEY OF THE CONSTITUTIONAL CONVENTION AND RATIFICATION DEBATES ........................................ 636 * Robert G. Natelson was a law professor for twenty-five years at three different universities and is currently is Senior Fellow in Constitutional Jurisprudence at the Independence Institute in Denver. His works and biography are listed at http://constitution.i2i.org/about [http://perma.cc/4Z4G-FCKX]. The author wishes to thank the following for invaluable assistance: The Inde- pendence Institute, Denver, Colorado, and its research director, Dave Kopel; Vir- ginia Dunn, Archives & Library Reference Services Manager, Library of Virginia; Joanna Innes, Fellow and Tutor in Modern History Somerville College, University of Oxford, England; Seth Barrett Tillman, Lecturer in Law, National University of Ireland Maynooth; Jane Thompson, Associate Director of Faculty Services and Research, William A. Wise Library, University of Colorado; and Daniel Smyth, Editor, LibertyBlog.org. All interpretations and any mistakes are the author’s own. 630 Harvard Journal of Law & Public Policy [Vol. 38 A. The Constitutional Convention ................... 636 B. The Ratification Debates ............................... 640 C. Non-Conclusions ........................................... 646 II. FOUNDING-ERA LEGISLATIVE PRACTICE: THE BRITISH PARLIAMENT ............................................ 646 A. How Parliamentary Practice Influenced the Founders .................................................. 646 B. Parliament and the Power of the Purse ...... 649 1. The Scope of the Term “Money Bill” ... 649 2. Hotch-Potch Bills and Tacking .............. 652 3. The Dispute Over Amendments by the Lords .................................................. 653 4. What Was An “Amendment?” ............. 657 C. Summary of British Practice ........................ 664 III. FOUNDING-ERA LEGISLATIVE PRACTICE: AMERICAN CONSTITUTIONS AND LEGISLATURES ........................................................ 665 A. American Constitution-Drafting: Background Information .............................. 665 B. How the American States Adopted New Rules ................................................................ 669 C. How the American Rules Continued to Evolve .............................................................. 672 D. The Scope of “Amendment” in American Practice ............................................................ 680 E. Summary of American Practice ................... 690 IV. WHAT THE CONSTITUTIONAL DEBATES TELL US ABOUT THE REASONS FOR HOUSE ORIGINATION AND THEIR SIGNIFICANCE .................................... 691 A. The Policies Behind House Origination ..... 691 B. Significance of the Policies Behind House Origination ..................................................... 700 V. WHAT THE CONSTITUTIONAL DEBATES TELL US ABOUT THE SCOPE OF AN “AMENDMENT” .......... 700 A. The Policies Served By the Amendment Qualifier .......................................................... 700 B. How Broad Was the Amendment Qualifier? ....................................................... 703 VI. CONCLUSION: THE ORIGINATION CLAUSE AND SOME IMPLICATIONS FOR THE PPACA ................ 705 No. 2] The Founders' Origination Clause 631 ***1 1. Bibliographical Note: This footnote collects those sources cited more than once, including prior published research by the author. Convention Proceedings THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION (Jonathan Elliot ed., 2d ed. 1836) [hereinafter ELLIOT’S DEBATES]; THE RECORDS OF THE FEDERAL CONVENTION OF 1787 (Max Farrand ed., 1937) [hereinafter FARRAND’S RECORDS]. Dictionaries (all unpaginated) JOHN ASH, THE NEW AND COMPLETE DICTIONARY OF THE ENGLISH LANGUAGE (1775) [hereinafter ASH]; N. BAILEY, AN UNIVERSAL ETYMOLOGICAL ENGLISH DIC- TIONARY (25th ed. 1783) [hereinafter BAILEY]; FREDERICK BARLOW, THE COMPLETE ENGLISH DICTIONARY (1772–73) [hereinafter BARLOW]; ALEXANDER DONALDSON, AN UNIVERSAL DICTIONARY OF THE ENGLISH LANGUAGE (1763) [hereinafter DON- ALDSON]; THOMAS DYCHE & WILLIAM PARDON, A NEW GENERAL ENGLISH DIC- TIONARY (16th ed. 1777) [hereinafter DYCHE & PARDON]; SAMUEL JOHNSON, A DICTIONARY OF THE ENGLISH LANGUAGE (8th ed. 1786) [hereinafter JOHNSON]; WILLIAM KENRICK, A NEW DICTIONARY OF THE ENGLISH LANGUAGE (1773) [here- inafter KENRICK]; WILLIAM PERRY, THE ROYAL STANDARD ENGLISH DICTIONARY (1st ed. 1788) [hereinafter PERRY]; THOMAS SHERIDAN, A COMPLETE DICTIONARY OF THE ENGLISH LANGUAGE (3d ed. 1789) [hereinafter SHERIDAN]. Legislative and other Governmental Publications British: WILLIAM COBBETT, PARL. HIST. ENG. (vols. 13–28, 1803–16) [hereinafter COB- BETT]; JOURNALS OF THE HOUSE OF COMMONS [hereinafter H.C. JOUR.]; JOURNALS OF THE HOUSE OF LORDS [hereinafter H.L. JOUR.]; THE PARLIAMENTARY REGISTER; OR HISTORY OF THE PROCEEDINGS AND DEBATES OF THE HOUSE OF COMMONS [hereinafter PARLIAMEN- TARY REGISTER] (mult. vols.). Federal: JOURNALS OF THE CONTINENTAL CONGRESS 1774–1789 (1904–37) [hereinafter J. CONT’L CONG.]. Connecticut: 1-5 THE PUBLIC RECORDS OF THE STATE OF CONNECTICUT (Charles J. Hoad- ly & Leonard Woods Labaree eds. 1894–1943) [hereinafter CONNECTICUT RECORDS]. Massachusetts: A JOURNAL OF THE HONORABLE HOUSE OF REPRESENTATIVES OF THE COMMONWEALTH OF MASSACHUSETTS. BEGUN AND HELD AT BOSTON IN THE COUNTY OF SUFFOLK, ON WEDNESDAY THE TWENTY-SIXTH DAY OF MAY, ANNO DOMINI, 1784 [herein- after MASS. H.R. JOUR.]. Maryland: The Senate and House of Delegates Journals are cited MD. H.D. JOUR. and MD. SEN. JOUR. Each session is free standing with its own pagination. New Hampshire: EARLY STATE PAPERS OF NEW HAMPSHIRE (Albert Stillman Batchellor ed., 1891–92) [hereinafter N.H. PAPERS]. New Jersey: VOTES AND PROCEEDINGS OF THE GENERAL ASSEMBLY OF THE STATE OF NEW-JERSEY [hereinafter N.J. PROCEEDINGS]. New York: VOTES AND PROCEEDINGS OF THE ASSEMBLY OF THE STATE OF NEW- YORK, from 1780 through 1790 [hereinafter N.Y. ASSEM. JOUR.] & JOURNAL OF THE 632 Harvard Journal of Law & Public Policy [Vol. 38 SENATE OF THE STATE OF NEW YORK [hereinafter N.Y. SEN. JOUR.], both available at the Gale Database, Eighteenth Century Collections Online. North Carolina: THE STATE RECORDS OF NORTH CAROLINA (Walker Clark ed., 1895– 1905) [hereinafter N.C. RECORDS]. Rhode Island: 8–10 RECORDS OF THE STATE OF RHODE ISLAND AND PROVIDENCE PLAN- TATIONS IN NEW ENGLAND (John Russell Bartlett ed., 1863–65) [hereinafter R.I. RECORDS]. South Carolina: JOURNALS OF THE GENERAL ASSEMBLY AND HOUSE OF REPRESENTATIVES 1776-1780 (William Edwin Hemphill, Wylma Anne Wates & R. Nicholas Olsberg eds, 1970) [hereinafter S.C. H.R. JOUR. (1776-80); JOURNAL OF THE HOUSE OF REPRESENTATIVES OF SOUTH CAROLINA, JAN. 8, 1782–FEB. 26, 1782 (A.S. Salley, Jr. ed., 1916) [hereinafter S.C. H.R. JOUR. (1782)]. Pennsylvania: MINUTES OF THE GENERAL ASSEMBLY OF THE COMMONWEALTH OF PENN- SYLVANIA (1784–89) [hereinafter PA. GEN. ASSEM. MIN.]. Virginia: JOURNAL OF THE HOUSE OF DELEGATES OF THE COMMONWEALTH OF VIRGINIA (1827) [hereinafter VA. H.D. JOUR.]; JOURNAL OF THE SENATE OF THE COMMONWEALTH OF VIRGINIA (1785–90) (Thomas W. White 1827–28) [hereinafter VA. SEN. JOUR.]. Other Works ROGER ACHERLEY, THE BRITTANIC CONSTITUTION (1759) [hereinafter ACHERLEY]. JEAN-LOUIS DE LOLME, THE CONSTITUTION OF ENGLAND (David Lieberman ed., 2007) (1771) [hereinafter DE LOLME]. John Dickinson, Letters from a Farmer in Pennsylvania, reprinted in EMPIRE AND NATION 1 (Forrest McDonald ed., 2d ed. 1999) [hereinafter DICKINSON]. THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION (Merrill Jensen, John P. Kaminski, & Gaspare J. Saladino eds., 1976–2012) [hereinafter DOCUMEN- TARY HISTORY]. PAUL EINZIG, THE CONTROL OF THE PURSE: PROGRESS AND DECLINE OF PARLIAMENT’S FINANCIAL CONTROL (1959) [hereinafter EINZIG]. SYDNEY GEORGE FISHER, THE EVOLUTION OF THE CONSTITUTION OF THE UNITED STATES (1897) [hereinafter FISHER]. ALEXANDER HAMILTON, JAMES MADISON & JOHN JAY, THE FEDERALIST (George W. Cary & James McClellan eds., 2001) [hereinafter THE FEDERALIST]. JOHN HATSELL, PRECEDENTS OF PROCEEDINGS IN THE HOUSE OF COMMONS (2d ed, 1785) (3 vols.) [hereinafter HATSELL]. DAVID W. HAYTON, INTRODUCTION, THE HISTORY OF PARLIAMENT: THE HOUSE OF COMMONS 1690–1715 (D. Hayton, E. Cruickshanks & S. Handley eds., 2002), available at http://www.histparl.ac.uk/volume/1690-1715/survey/business-house [http://perma.cc/
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